I. Role and structure of the new guidelines on exclusionary abuse under Article 102 TFEU
On 3 September 2026, the European Commission (“Commission”) published its much-anticipated Guidelines on Exclusionary Abuse of Dominance (“Guidelines”; see press release), together with an accompanying Q&A (see here). This marks a pivotal moment in EU competition law history: for the first time, the Commission has issued formal guidance on the application of Article 102 TFEU.
The Guidelines come more than two years after the launch of a public consultation on a controversial first draft that, according to many observers, was trying to take short cuts in order to “ease the Commission’s life” when enforcing Article 102 TFEU. The final Guidelines differ substantially from the first draft and demonstrate the Commission’s willingness to take on board constructive criticism and alternative proposals submitted by many stakeholders during the consultation.
The Guidelines will serve as a key source of legal guidance not only for dominant undertakings but also for companies filing complaints concerning the market practices of dominant undertakings, as well as national competition authorities and national courts applying Article 102 TFEU in domestic proceedings. The Guidelines replace and revoke the Commission’s 2008 paper on its enforcement priorities under Article 102 TFEU, which was heavily influenced by the “more economic approach” doctrine and primarily focused on economic considerations and analytical tools. In line with the Union courts’ recent case law, the new Guidelines instead place legal principles at the centre, while retaining economic analysis as an important part of the assessment.
The Guidelines comprise five sections and are concluded by the final remarks: the introduction is followed by the section on dominance, which includes an important “soft safe harbour”, according to which dominance is “generally unlikely” if the market share is below 40%. It further provides extended explanations on digital ecosystems, aftermarkets and collective dominance.
The next three sections form the heart of the Guidelines: (i) the section on the general principles underlying the analytical framework for exclusionary abuse cases; (ii) the specific legal tests and principles for certain types of conduct that are particularly relevant under Article 102 TFEU; and (iii) a detailed description of the general principles for the objective justifications on which an undertaking may rely when its conduct is considered prima facie to fulfil the criteria of exclusionary abuse.
II. The general principles for establishing an exclusionary abuse
As follows from the case law of the European Court of Justice (“CJEU”), the Guidelines state that a two-limbed legal test generally applies when assessing whether a dominant undertaking’s conduct constitutes an exclusionary abuse: first, the relevant conduct must depart from competition on the merits and, second, be capable of having exclusionary effects. There are three important exemptions to the application of this test:
- i) the relevant conduct falls into one of the categories for which a specific legal test exists, which then replaces the principal test;
- ii) the Commission can demonstrate that the relevant market practice can exclude a competitor that is as efficient as the dominant undertaking; or
- iii) the conduct in question is inherently anti-competitive and cannot be explained by any other rationale other than being aimed at distorting competition (so-called “naked restrictions”).
Departure from competition on the merits
Regarding the principal test’s first limb – requiring that the dominant undertaking’s conduct must depart from competition on the merits – the Guidelines clarify, in line with the case law, that competition on the merits means “normal” performance-based competition. This covers “a competitive situation in which consumers benefit from lower prices, better quality and a wider choice of new or improved products”. Accordingly, conduct which has the effect of “broadening consumer choice by putting new goods on the market or by increasing the quantity or quality of the goods on offer” generally constitutes competition on the merits (para. 67).
The Guidelines do not exhaustively define when conduct is “off merits”, but explain that this must be assessed based on all relevant factual circumstances on a case-by-case basis. As examples, the Guidelines mention the submission of incorrect information in administrative or regulatory proceedings and self-preferencing while discriminating against competitors. It is further noted that relying on resources inherent to the dominant position, and therefore not accessible to rivals, is an “important factor” regarding potential “off merits” conduct. Importantly, however, the Guidelines do not endorse a stricter interpretation of the most recent case law according to which the lack of replicability of the relevant conduct by non-dominant firms, or the use of resources inherent in the holding of a dominant position, is in itself sufficient to establish a departure from competition on the merits. The Guidelines’ more lenient approach to the replicability question is to be welcomed. Even conduct that is not replicable, or that relies on resources available only to the dominant company, can nonetheless be pro-competitive and beneficial to consumers and thus fall within the scope of competition on the merits.
Capability to produce exclusionary effects
The second limb of the general test concerns the potential effects of the conduct in question. The Commission must demonstrate that the conduct is capable of producing exclusionary effects. The Guidelines clarify that the notion of exclusionary effects is to be understood broadly: it is not required that the conduct can fully exclude or foreclose competitors from the market. Instead, any “hindrance to the normal competitive process” and any “elimination or reduction of competitors’ ability or incentive to exert a competitive constraint on the dominant undertaking” supposedly constitute relevant exclusionary effects.
At the same time, the Guidelines state that there is no de minimis threshold for exclusionary effects. They also confirm that the same legal standard for proving whether conduct is capable of having exclusionary effects applies to dominated and non-dominated markets when proving the exclusionary effects capability (para. 104). Consequently, the range of possible exclusionary effects as set by the Guidelines is extremely broad.
In our view, this broad approach is not supported by the case law. The Union courts consistently require an impact on the “effective competition structure” of a particular market. This arguably requires more than a mere reduction of an individual competitor’s ability and incentive to compete.
The role of “as efficient competitors”
The Guidelines also adopt the CJEU’s clear line that the capability to foreclose as efficient competitors (“AECs”) is not a prerequisite for finding exclusionary abuse in every case. While a price-cost test to establish whether the conduct is liable to exclude an AEC is typically required for price-related conduct, the Commission points to several scenarios in which the efficiency of a hypothetical competitor may not be relevant.
The prime example of this, also frequently mentioned by the CJEU, is conduct that can restrict companies’ ability to enter or to grow in a market before they can achieve the dominant undertaking’s level of efficiency. The Guidelines further explain that an efficiency-based analysis may not be meaningful where the market structure is such that it is not realistic to assume a competitor could achieve the dominant company’s efficiency level. Examples of this in the Guidelines are (i) a very large market share held by the dominant company, (ii) high barriers to entry (for example because of network effects) or (iii) regulatory characteristics entrenching the dominant position.
III. Types of conduct for which specific legal tests apply
The fourth section sets out the specific legal tests and principles for certain types of conduct for which the Union courts have developed special requirements and/or principles for assessing exclusionary abuse. If the requirements of such a specific legal test are met, it is no longer necessary to demonstrate that the two general test criteria (departure from competition on the merits and capability of producing exclusionary effects) are also fulfilled.
The nine categories of conduct subject to specific legal tests can be divided into three groups: (i) pricing-related conduct (predatory pricing, margin squeeze, conditional rebates); (ii) non-pricing conduct with specific legal tests (exclusive dealing, tying and bundling, access restrictions, refusal to supply and self-preferencing); and (iii) “naked restrictions”, i.e. conduct that is “by its very nature harmful to competition” as it has no other economic interest for the dominant company than restricting competition.
Importantly, following fierce criticism during the consultation process, the revised Guidelines dropped the broad use of presumptions that would have substantially shifted the burden of proof to the dominant undertaking. Based on the Guidelines, a presumption explicitly applies in cases of exclusive dealing. This is in line with the CJEU’s first Intel-judgment.
In addition, para. 58 of the Guidelines sets out the general – but vague – principle that, depending on the evidence presented, a presumption that certain conduct distorts effective competition may apply in certain circumstances, while noting that the strength of the presumption may vary depending on the relevant analytical framework and evidence at hand. This unclear passage does not strengthen legal certainty. While it appears unlikely that the Commission itself will make much use of para. 58, there is a risk that national competition authorities and national courts could use it to “invent” additional presumptions in cases where the general requirements for exclusionary conduct are difficult to prove. In any event, the CJEU would have the final say.
IV. Objective justification defence
With the final section, the Commission significantly expanded its “guidance” on the principles for an objective justification compared to the first draft. The objective justification defence of the dominant undertaking can take two forms.
- First, under the objective necessity defence, the undertaking must demonstrate that the conduct is genuinely necessary and proportionate to achieving a legitimate aim, such as protection against unfair competition, safeguarding product or network security, or pursuing genuine public interest objectives such as sustainability or resilience. It must further show that no less restrictive alternative is available.
- Second, under the efficiency defence, the undertaking must show (i) that its conduct produces verifiable efficiencies; (ii) that those efficiencies are passed on to consumers sufficiently to offset any harm; (iii) that the conduct is indispensable to achieving those efficiencies; and (iv) that effective competition is not eliminated. These criteria essentially correspond to the criteria set out in Article 101 (3) TFEU for the justification of anticompetitive agreements. The demonstration must be based on convincing, concrete, and verifiable evidence. Importantly, a sliding scale applies: the more harmful the conduct is to competition, the less likely any justification will succeed.
While the Guidelines set out many arguments dominant companies can make in order to justify their conduct, they also make clear that such arguments will rarely succeed.
Regrettably, the Guidelines do not explicitly endorse the principle contained in the draft of the new Merger Guidelines according to which the evidentiary standard for efficiency defences (the “theory of benefits”) mirror the evidentiary standards that the Commission must meet in order to prove its theory of harm. Arguably, however, this principle already follows from general principles of procedural law and the principle of equality of arms.
V. Conclusion
The Guidelines will be of major importance for the future enforcement of Article 102 TFEU. They constitute a substantial improvement compared to the first draft and should add at least some legal certainty regarding the application of Article 102 TFEU. They are generally aligned with the CJEU’s case law, and the Commission scaled back the use of presumptions, that conflicted with this case law.
Nevertheless, some grounds for criticism persist. First, the notion of exclusionary effects continues to be overly broad. Second, the Guidelines lack an actual definition of the fundamental notion of “distortion of effective competition” that is supposed to govern the analysis of exclusionary abuses. And, third, the Guidelines still remain quite vague overall and do not provide any clear “safe harbours” for the conduct of dominant companies. These shortcomings carry the risk of false positives, particularly in cases where Article 102 TFEU is applied by national courts that have no specific competition law expertise. Only time will tell how the Guidelines will be applied in practice and whether competition authorities and national courts can withstand the urge to deal with complexity through short cuts that are not backed by the case law.
Forward
